Lifetime Planning and Wills specialist Jenny Greenland explains the current rules on witnessing your Will remotely. Our team are available on 01225 755656 or by completing the Contact Form below. |
On the announcement of first lockdown, not only did the demand for Wills surge but witnessing them became problematic. This is because Section 9 of the Wills Act 1837 provides that, to be valid, you must sign your Will “in the presence of two or more witnesses present at the same time.”
On lockdown, meeting anyone outside of your immediate family was prohibited. As close family members are often beneficiaries, and as beneficiaries cannot witness a Will, finding a swift solution was imperative.
Casson v Dade
In the first instance, private Wills solicitors got creative. Blowing the dust off some very old case law – specifically Casson v Dade from 1781 – suggests it may be sufficient for a Will to be witnessed by two people who are in the testator’s line of sight, even though they are not in the same room. The case in question concerned a lady sitting in her carriage outside her solicitor’s office but observing through the window the witnesses adding their signatures to her Will inside.
Reliance on this case led to a flurry of signing and witnessing Wills on car bonnets and through windows, all the time ensuring the testator and their two witnesses remained in clear line of sight of each other through the window or windscreen.
Virtual Wills
As Zoom and similar video conferencing platforms swiftly became part of the ‘new normal’, the Government brought in an amendment to the Wills Act 1837, allowing the remote witnessing of Wills. Recognising there had already been several months of uncertainty, the amendment was retrospective to the beginning of lockdown. The amendment was due to expire in January 2022, but this has now been extended until January 2024.
There is no change to the requirement for a Will to be signed in the presence of at least two witnesses, but the testator and the witnesses do not all have to be physically present in the same room. A ‘virtual’ meeting via Zoom or similar enables a Will to be validly executed. However, the Ministry of Justice has indicated that such remote witnessing should be a last resort, with physical witnessing still preferable where it is safe to do so.
It’s also important to note that virtual witnessing is only recognised if the video and sound quality is sufficient to see and hear what is happening.
Caution
Generally, practitioners have remained cautious about remote witnessing, and where it does take place, ensuring safeguards are observed. Virtual meetings are routinely recorded with all participants’ consent to help protect against fraud or undue influence. And when the Will is sent to the witnesses for signing, special delivery post should always be used.